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Official Opinion 98-16

Official Opinion 98-16

September 11, 1998

To:

State Auditor

Re:

Unless the General Assembly otherwise provides, state agencies should presumptively consider college courses as being beyond the scope of the ordinary training agencies may provide employees in state government, but, in certain narrow circumstances, agencies may train employees in college courses which provide job-specific instruction.

As a possible basis for audit guidelines and policies on allowable training expenses, you have asked whether state agencies may pay for employees to attend college courses for credit if the instruction provides a skill or professional certification necessary for the job. My qualified answer in the affirmative derives from explaining and distinguishing employee benefits, gratuities and job-related training.

The prohibition against governmental gratuities requires that the state receive a substantial benefit for the grant or use of its assets. Ga. Const., Art. III, Sec. VI, Para. VI(a); e.g., Garden Club of Georgia, Inc. v. Shackelford, 266 Ga. 24 (1995). The requirement is usually satisfied in contracts, where the state bestows a benefit in return for receiving one as part of the bargain. Smith v. Board of Comm’rs, 244 Ga. 133 (1979) (use of fire station in return for fighting fires). Where authorized by law, benefits for public employees such as retirement and health insurance are a special instance of contractual consideration. Trotzier v. McElroy, 182 Ga. 719, 723 (1936) (retirement benefits); see generally 1996 Op. Att'y Gen. U96-21 (retirement benefits and gratuities); 1993 Op. Att'y Gen. U93-14 (contracts, use of state property and gratuities).

There are exceptions to the gratuities prohibition not requiring a contractual relationship, for example, welfare. Brock v. Chappell, 196 Ga. 567 (1943). "Educational assistance" is another exception. The Board of Regents has the power to allow people to attend the University System without paying tuition. Ga. Const., Art. VIII, Sec. VII, Para. IV. The General Assembly is empowered in several ways to establish programs of educational assistance, beginning generally with a power to provide for "grants, scholarships, loans, or other assistance to students and to parents." Ga. Const., Art. VIII, Sec. VII, Para. I(a)(1). Such aid is simply a permitted gratuity. 1971 Op. Att'y Gen. 71-147. In the same Paragraph, the Constitution also authorizes "grants, scholarships, loans, or other assistance to public employees for educational purposes." Ga. Const., Art. VIII, Sec. VII, Para. I(a)(4). This clause authorizes a benefit in consideration of public employment.

The "employee assistance" clause is not self-executing. By express terms of the Constitution, "educational assistance" can only be granted "[p]ursuant to laws now or hereafter enacted by the General Assembly." Ga. Const., Art. VIII, Sec. VII, Para. I; cf. 1973 Op. Att'y Gen. 73-154 (interpreting earlier, analogous provision). For an example of such a law and program, see the provisions for professional development for educators. O.C.G.A. §§ 20-2-182(h), -217, -232; Ga. Comp. R. & Regs. r. 160-3-3-.04 (1996). At present there is no statute which authorizes educational assistance for public employees generally, nor is there a specific statute for either of the two agencies which inquired to you about training through college courses (the Department of Natural Resources and the Office of Treasury and Fiscal Services).

This means only that legislation is needed to give government personnel the employee benefit of "educational assistance." It does not mean that specific legislative authorization is needed to train employees. Training is one of the "ordinary" activities and expenses of government, and it is not necessary to rely on the "educational assistance" clause to conduct it. 1963-65 Op. Att'y Gen. p. 697 (agency may place employee on temporary duty away for job training); 1963-65 Op. Att'y Gen. p. 758 (an agency may pay third parties to teach employees); cf. 1968 Op. Att’y Gen. 68-110 (under certain circumstances, agency may pay professional dues as ordinary expense). In fact, it is the state 's express policy to "[t]rain[] employees, as needed, to assure high quality performance." O.C.G.A. § 45-20-1(b)(4).

The 1965 opinions conclude that training may take place at college. 1963-65 Op. Att'y Gen. p. 697; 1963-65 Op. Att'y Gen. p. 758. The latter reached its result even though the statutory language upon which it relied did not specifically refer to college work, merely authorizing “‘projects . . . improv[ing] . . . the qualifications and technical skills of professional personnel.’” 1963-65 Op. Att’y Gen. p. 758, 759. These 1965 opinions are consistent with the proposition that unless there is legislation or regulation to the contrary, the terms and conditions of employment, including the time, place and manner of its performance, are established by agency heads. See generally 1981 Op. Att'y Gen. 81-14; 1978 Op. Att'y Gen. 78-17; 1972 Op. Att'y Gen. 72-67. However, the 1965 opinions must also be considered in light of present day law and its evolution since their time.

The first of the 1965 opinions noted, but did not require application of, an early "educational assistance" clause that directly gave state agencies a limited power to provide employee scholarships. A later opinion, dealing with a request to review a program of "scholarships" and "educational leave" for "approved doctoral-level training," relied only on that clause (which was then still self-executing) in upholding the program. Ga. Const. 1945, Art. VII, Sec. I, Para. II(7) [Ga. Code Ann. § 2-5402(7)]; 1973 Op. Att'y Gen. 73-154. This 1973 advice does not mention the 1965 opinions or rely alternatively, as they did, on training as an ordinary expense of government, even though the opinion undertakes to identify alternative bases. To view training, at least in general, as an ordinary expense was still viable because an intervening opinion did rely on that analysis for paying professional membership dues. 1968 Op. Att’y Gen. 68-110. The practical implication is that sending employees to college, as seen from within government, presumptively became an employee benefit, requiring statutory or constitutional authorization.

The meanings of "to train" and "to educate" bear this out. Without more, we presume that the words of the Constitution are "employed in their natural and ordinary meanings." McCook v. Long, 193 Ga. 299, 303 (1942). "To train" and "to educate" have very similar meanings. "To train" means "[t]o make proficient with specialized instruction and practice." The American Heritage Dictionary 1285 (2d College ed. 1991). "To educate" can itself mean "[t]o provide with training for some particular purpose." Id. at 439. However, it also has the broader meaning "(t)o provide with knowledge or training, esp. through formal schooling." Id. (emphasis added). The special association of "formal schooling" with "education," not training, further supports a presumption that college level work should be treated presumptively as a benefit, requiring legislative authorization.

I am reluctant to state this as an absolute rule. The subsequent opinions do not reject the 1965 opinions. See 1972 Op. Att'y Gen. 72-98 (superseding the first 1965 opinion only to the extent that it was inconsistent with a new Merit System rule). Also, prior opinions provide some guidance for distinguishing "training" from "education as benefit." To be "training" the activity must be "directly related" to the functions of the agency performed by the employee. 1963-65 Op. Att'y Gen. p. 697, 698; cf. 1968 Op. Att’y Gen. 68-110 (agency may pay professional dues for memberships required by job, related to agency functions and providing information and other services of use to agency). It must be part of the employee's duties to take the training and not just be for his or her "personal benefit." Cf. 1967 Op. Att'y Gen. 67-178 (explaining when Regents may agree to pay professor's salary if research trip behind Iron Curtain results in detention while scheduled to teach). The state must receive the "primary benefit" and the arrangement may not be a "subterfuge." 1969 Op. Att'y Gen. 69-418 (explaining when state may help employees install and use personal mobile homes on state property). In general, training is done while on duty, is very specific to tasks or certifications required for the job, and is generally short-term. To illustrate, I would consider a one-term, college lab course to constitute "training" if it is largely limited to providing instructions on new instruments being acquired for use in environmental testing. Other examples would be an accounting course specifically for explaining new governmental accounting standards or a finance course specifically analyzing new methods of investing government funds.

Two opinions suggest a requirement that the employee agree to be available for state employment for a period of time. 1967 Op. Att'y Gen. 67-178; 1963-65 Op. Att'y Gen. p. 697, 698. This is a valid suggestion for preventing a gratuity, not necessarily limited to training. Cf. 1980 Op. Att'y Gen. 80-65 (state must be beneficiary of insurance on state credit card carried by employee). However, not all training will necessarily require such arrangements, particularly if the guidelines in this opinion are followed. Most routine training within the guidelines may be administered in the ordinary course without special requirements as long as there is a reasonable expectation of continued employment. Cf. 1993 Op. Att'y Gen. U93-14, p. 113 ("[P]recedent . . . require[s] a good faith expectation, and primary motive, that the state will benefit in fair return for the cost or the value bestowed."); 1973 Op. Att'y Gen. 73-145. The ultimate requirements are that the state receive a "substantial benefit" for its expenditure of time and money on the employee, cf. Garden Club of Georgia, Inc. v. Shackelford, 266 Ga. 24 (1995), and that the employing officers do their best to receive the best possible return on the use of state time and money. See Malcom v. Webb, 211 Ga. 449, 456 (1955).

This advice is limited to consideration of the statutory and constitutional authority for state agencies to send employees to take college courses for training. Related areas such as tax law, hours of work under the Fair Labor Standards Act ("FLSA"), workers compensation, and specialized arrangements for committing employees to be available for further employment are beyond this discussion but raise issues agencies should consider in conducting training.

In light of the above, it is my official opinion that unless the General Assembly otherwise provides, state agencies should presumptively consider college courses as being beyond the scope of the ordinary training agencies may provide employees in state government, but, in certain narrow circumstances, agencies may train employees in college courses which provide job-specific instruction.